The Trump administration has moved to block a loophole commonly used by temporary visa-holders, visa overstayers, and illegal border-crossers who are sponsored for a green card to apply from within the United States, thus avoiding potential penalties for extended unlawful presence. While much of the criticism of the policy change has come from advocates for temporary visa workers with pending green card applications, this change is more likely to affect certain family applicants — namely, marriage-based applicants and parents of U.S. citizens who are here unlawfully, who violated the terms of their admission, or who misled officials about their purpose for coming here.
In a nutshell, the memo says that green card applicants who are already present in the United States can no longer expect to routinely be allowed to complete their green card application here; going forward, some applicants, such as those who are here without a legal status, may be asked to complete their application abroad — and potentially be subject to the penalty of a re-entry bar as a result of their illegal residency.
Each year, about one million immigrants are “admitted” (i.e. processed and approved) for permanent residency. Most are sponsored by a family member or employer. Many sponsored immigrants apply from abroad in their home countries and then, once approved, travel to the United States on an immigrant visa. For decades, however, the majority of immigrants have applied from within the United States and “adjusted” their status to lawful permanent resident (LPR). Some adjust from a lawful temporary status, such as student or visa worker, and others are more or less able to launder their status by applying from within the United States after being sponsored.
It is difficult to estimate the number of people who potentially could be affected by the policy change. The Department of Homeland Security (DHS) collects but does not publish information on the status at entry of those who are approved to adjust to LPR status, so there is no reliable data on how many applicants adjust from lawful or unlawful status.
In FY 2023, which is the most recent year for which statistics on adjustment of status admissions are available, the number of adjustments was 608,260 out of 1,172,910 total immigrant admissions, or 52 percent. Of these adjustments, by far the largest share were in the category of immediate relatives (315,830). Fifty-seven percent of all those admitted as immediate relatives were adjustments; that is, people who were living here already. That was about half of all adjustments and represents more than one-fourth of total legal immigration. This category covers spouses of U.S. citizens, the spouse’s children, and parents of adult U.S. citizens. It is the largest green card category, and admissions are unlimited; i.e. no numerical cap, per-country limits, or long waiting list.
In contrast, in 2023 only 146,880 people adjusted in all of the employment categories combined, although this represented 75 percent of all employment LPR admissions. The employment-based adjusters are a high percentage of a much smaller number of immigrants. Only 10,940 immigrants adjusted in the family preference categories, or 5 percent of admissions in that category.
The DHS statistics provide a breakdown of which categories of immediate relatives are adjustments: 190,650 were spouses of U.S. citizens (60 percent of IR adjustments); 19,490 were the spouses’ children (6 percent); and 105,690 were the parents of adult U.S. citizens (33 percent). Interestingly, the number of parents who adjusted in 2023 was about double the number who adjusted as parents in prior years.
The number of people who can take advantage of adjustment of status is generally limited to those who originally entered lawfully with a visa or who were granted parole. Those who come under the Visa Waiver Program are not allowed to adjust status. Some temporary visa holders, such as workers and students who apply for a green card, might still have lawful status when they apply, but others would be among the estimated four to five million visa overstayers.
Parolees would include some of the more than two million visa-less migrants who were allowed to enter under the Biden administration. The Trump administration has moved to terminate parole and revoke work permits for about 500,000 of these migrants (those in the CHNV Program for citizens of Cuba, Haiti, Nicaragua, and Venezuela). In addition, tens of thousands of DACA holders have obtained parole over the years, some under a controversial interpretation of the law.
Those who are sponsored for a green card but who entered unlawfully are already required to return home for processing. However, upon exiting the United States, they become subject to another provision of the law (Section 212(a)(9)(b)), which was enacted by Congress in 1996 as a way to deter and penalize illegal immigration. Under this provision, those who resided here illegally for more than six months are subject to a bar to re-entry for three or 10 years, depending on how long they resided here illegally.
Some applicants can overcome the bar on re-entry by obtaining a waiver after being barred. Waivers are available to those who can show that being barred would be an extreme hardship for a U.S. citizen, defined as a hardship greater than mere separation or the inconvenience of moving. In 2024, the most recent year for which statistics are available, nearly 20,000 applicants applying abroad were barred under this section. More than 18,000 (or about 90 percent) received a waiver.
However, in practice, it is apparent that many applicants prefer not to risk departing and applying for a waiver, and decide to forego the application process to avoid being barred.
Until now, visa overstayers seeking green cards have been able to avoid the three/10-year bar altogether by remaining in the country and adjusting status. As a result of the new policy, for the purpose of applying for a green card, overstayers and parolees apparently will be treated the same as illegal border-crossers.
Judging by the current patterns of adjustment of status, this policy may have a chilling effect on certain applications — especially spouses and parents of U.S. citizens who have fallen out of legal status.
For those immigration categories that have high rates of fraud and abuse, like the marriage category, it is certainly preferable from an enforcement and security standpoint to process these cases at consulates overseas. When a person applies abroad, they have obviously left the country. Therefore, if they are found to be ineligible, whether for fraud, security, or public charge reasons, then they are already out of the country and do not have to be charged and go through lengthy proceedings in immigration courts, from which many people abscond. In addition, applicants abroad have fewer opportunities to appeal a denial.
It is also important to note that USCIS has indicated that it may exercise discretion and offer some applicants the opportunity to adjust if it is in the national interest, such as in the case of applicants with meaningful employment or for humanitarian considerations.
This policy change is not as drastic as some critics have claimed, but it should bring genuine improvement to the fairness and integrity of our legal immigration system — especially for those applicants who have followed the rules.